Suit for specific performance - agreement of sale - later Consent decree passed - registered conveyance deed was executed - At the instance of thrid party - consent decree was set aside and conveyance deed was cancelled - remanded for joint trial along with the suit of third party - Division Bench of the High Court of Calcutta directing the suit Court to impound the document (dt. 15th January, 1990) and take appropriate steps in accordance with law for the assessment of the stamp duty, penalty and the like thereon.- Apex court held In the facts and circumstances, it will not give any cause of action to the respondent to raise an objection for impounding of the document invoking Section 35 of the Indian Stamps Act, 1899 more so when the appellant had paid the stamp duty of Rs. 1,85,000/- and is entitled for refund which indisputedly was never claimed. In our considered view, in the facts and circumstances of the case, it was not open for the Division Bench under the impugned judgment to set aside the order of the Single Judge which was one of the possible view in the peculiar facts and circumstances of the case.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8198-8199 OF 2019
(ARISING OUT OF SLP(C ) NO(S). 19774-19775 OF 2017)
M/S TERAI TEA COMPANY LIMITED ….APPELLANT(S)
VERSUS
KUMKUM MITTAL & ORS. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. These appeals are directed against the order dated 13th
April, 2017 passed by the Division Bench of the High Court of
Calcutta directing the suit Court to impound the document (dt.
15th January, 1990) and take appropriate steps in accordance
with law for the assessment of the stamp duty, penalty and the
like thereon.
3. The brief facts of the case are that one Dhirendra Nath
Bhowmick (since deceased), as the sole proprietor and
perpetual lessee had agreed to sell a tea estate namely, M/s.
Dharanipur Tea Estate comprising of a tea garden measuring
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about 1140.59 acres in favour of the appellant-plaintiff along
with all the liabilities on a consideration of Rs. 10,11,000/- and
he executed an agreement to sell to that effect on 15th January,
1990 after accepting a part consideration amount of Rs.
2,11,000/-. Dhirendra Nath Bhowmick failed and/or neglected
and/or refused to fulfil his obligations under the said agreement
to sell dated 15th January, 1990, by not executing and
registering the Deed of conveyance within the time specified,
despite the appellant-plaintiff being fully ready and willing to
discharge its part of obligations including the payment of
balance consideration amount on or before 15th March,1990.
4. The appellant-plaintiff filed the suit for specific
performance of the agreement before the High Court. In the
said suit, an application for interim injunction was refused by
the Single Judge vide Order dated 1st April, 1991 that came to
be challenged at the instance of the appellant in letters patent
appeal before the Division Bench of the High Court. During
pendency of the appeal, both the parties entered into a
compromise and the Division Bench of the High Court vide its
order dated 2nd August, 1991 passed the consent decree in the
appeal and accordingly disposed of the Suit No. 240 of 1990
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and observed that the verbal compromise constitute the fresh
agreement as the original agreement dated 15th January, 1990
was modified upon enhancement of consideration from the
original amount of Rs. 10,11,000/- to Rs. 12,11,000/-. As the
defendant in the suit agreed to execute the deed of
conveyance in favour of the appellant-plaintiff, two drafts,
amounting to Rs. 9,00,000/- and Rs. 2,00,000/-, both bearing
dated 25th July, 1991, being the balance of the consideration
money of the said tea estate were paid. Accordingly, late
Bhowmick executed the conveyance deed no. 11248/1991 in
favour of the appellant. It is not disputed that the appellant
paid full stamp duty of Rs. 1,85,000/- on the deed of
conveyance dated 3rd August, 1991.
5. It may be relevant to notice that the respondentdefendant in the suit concealed material information that the
earlier suit no. 8 of 1984 was filed by Dhirendra Nath Bhowmick
and his wife for declaration that the transfer of controlling
interest in the shares of M/s. The New Red Bank Tea Company
Private Ltd. was not valid and a declaration was sought that the
said Dhirendra Nath Bhowmick had all equitable right, title and
interest in respect of the said Dharanipur Tea Estate and for
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restoration of possession. 6. The decree for specific
performance granted by the Court in Suit No. 240 of 1990 came
to be challenged in this Court in Civil Appeal No. 3569 of 1991
by The New Red Bank Tea Company Private Ltd. (respondent
No. 6) impleading the present appellant and the interested
parties as respondents. This Court observed that while the
decree of specific performance was granted by the Court in Suit
No. 240 of 1990 dated 2nd August, 1991, the earlier Suit No. 8
of 1984 pending in the High Court of Calcutta remain unnoticed
and both the suits ought to have been tried together, taking
note thereof, the decree of specific performance passed in Suit
No. 240 of 1990 for the aforesaid reason was set aside and the
High Court was directed to dispose of both the suits as
expeditiously as possible. Obviously in consequence thereof,
the deed of conveyance which was executed in furtherance of
the decree of specific performance also came to be cancelled.
7. It is indisputed that the present appellant with all
bonafides proceeded to pay the full consideration of the suit
property in question and pursuant to the decree of specific
performance dated 2nd August, 1991, deed of conveyance was
executed on which the required stamp duty of Rs. 1,85,000/-
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was also paid but obviously after the decree of specific
performance dated 2nd August, 1991 been set aside by this
Court, consequent thereto, the deed of conveyance dated 3rd
August, 1991 remain non-existent and the appellant
indisputedly was at liberty to claim refund of the stamp duty of
Rs. 1,85,000/- which was paid on the deed of conveyance dated
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rd August, 1991.
8. After Suit No. 240 of 1990 came to be restored pursuant
to the order of this Court dated 9th September, 1991 to be
heard along with Suit No. 8 of 1984, at this stage application
was filed by the respondent for impounding the document
(agreement to sell dated 15th January, 1990) taking assistance
of Section 35 of the Indian Stamp Act, 1899. The Single Judge
of the High Court under its order dated 14th February, 2017
noticed that appellant had already paid the stamp duty of Rs.
1,85,000/- on the deed of conveyance which has been
cancelled and he was at liberty to claim the refund. In the
given circumstances, his right of specific performance of the
agreement based on the agreement to sell dated 15th January,
1990 shall be decided as a moot question by the Court as per
the evidence to be adduced by the parties to the suit.
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9. Learned counsel for the appellant has raised submissions
questioning the maintainability of the appeal preferred against
the interim order passed by the Single Judge of the High Court
dated 14th February, 2017 in pending suit No. 240 of 1990 and
that apart submits that the appellant had paid a stamp duty of
Rs. 1,85,000/- on the deed of conveyance but after the
judgment being passed by this Court dated 9th September,
1991, the decree of specific performance dated 2nd August,
1991 and consequently deed of conveyance executed pursuant
thereto has been cancelled but appellant is entitled to seek
refund of the stamp duty of Rs. 1,85,000/- paid by it and
no one has disputed the same before the Division Bench of the
High Court in seeking refund of the duty paid by it. In the given
circumstances, it remains a technical plea that the agreement
to sell dated 15th January, 1990 being unstamped, it will be
harsh in the given facts to impound the document without the
matter being adjudicated and it was the direction of this Court
to consolidate both the suits to be heard on merits.
10. Learned counsel further submits that impounding of the
document at this stage during pendency of the suit indeed
frustrate the very plea which he has raised in the pending suit
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and in the given circumstances, it will be unjust to non-suit the
claim of the appellant after the suit remain pending in the Court
for almost 29 years.
11. Per contra, learned counsel for the respondent, on the
other hand, while supporting the order passed by the Division
Bench of the High Court submits that recovery of stamp duty
which was paid on the deed of conveyance which the appellant
is indisputedly at liberty to recover by due process of law but
that will not give any benefit in reference to the agreement to
sell dated 15th January, 1990 which indisputedly was
unstamped and in the given circumstances, the High Court has
not committed any error in impounding the document.
12. We have heard learned counsel for the parties and with
their assistance perused the material available on record.
13. The indisputed facts which can easily be discernible from
the records are that in reference to the suit property, there was
an agreement to sell dated 15th January, 1990 executed by late
Dhirendra Nath Bhowmick in favour of appellant-plaintiff for the
sale of tea estate namely, M/s. Dharanipur Tea Estate for a
consideration of Rs. 10,11,000/- for which part payment of
Rs. 2,11,000/- was made and since late Dhirendra Nath
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Bhowmick failed to fulfil his obligation, suit for specific
performance no. 240 of 1990 at the instance of the appellant
came to be instituted. In the said pending suit no. 240 of 1990,
since the interim injunction was refused, appeal came to be
preferred and during pendency of the appeal, the parties to the
proceedings entered into a compromise and the Division Bench
of the High Court vide its order dated 2nd August, 1991 granted
consent decree on enhancement of a consideration from
original amount of Rs. 10,11,000/- to Rs. 12,11,000/-. In
sequel thereto, the deed of conveyance was executed on 3rd
August, 1991 and stamp duty of Rs. 1,85,000/- was paid by the
appellant and full consideration of Rs. 12,11,000/- was paid by
the appellant to Dhirendra Nath Bhowmick.
14. This fact was not in the notice of the appellant that prior
to filing of the suit no. 240 of 1990, earlier suit no. 8 of 1984
was filed by Dhirendra Nath Bhowmick and his wife for
declaration that the transfer of controlling interest in the shares
of the company, namely, M/s. the New Red Bank Tea Company
Private Ltd. was not valid and a declaration was sought that he
had legal and equitable right, title and interest in respect of the
said Dharanipur Tea Estate and restoration of possession was
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pending adjudication. The consent decree dated 2nd August,
1991 pursuant to which the deed of conveyance was executed
on 3rd August, 1991 and stamp duty of Rs. 1,85,000/- was paid
that came to be challenged in this Court by M/s. New Red Bank
Tea Company Private Ltd. who indisputedly was not party to
the proceedings which was instituted at the instance of the
appellant (Suit No. 240 of 1990).
15. After the parties being heard, this Court allowed the civil
appeal under its order dated 9th September, 1991 and set aside
the consent decree dated 2nd August, 1991 on the premise that
suit no. 240 of 1990 and suit no. 8 of 1984 ought to have been
tried together and the suit for specific performance could not
have been decreed by consent without determining the legal
title and factum of possession of the suit property. The title
and possession could not have been decided without
impleading the respondent M/s. The New Red Bank Tea
Company Private Ltd. as a defendant to the suit. By setting
aside the consent decree dated 2nd August, 1991, in the
consequence, the deed of conveyance dated 3rd August, 1991
also came to be cancelled and after the order of this Court in
Civil Appeal No. 3569 of 1991 dated 9th September, 1991, it
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reveals that M/s. the New Red Bank Tea Company Private Ltd.
has been impleaded as a defendant in suit no. 240 of 1990 filed
at the instance of the appellant and under the directions of this
Court, both the suits are clubbed and to be heard together on
merits.
16. In the peculiar facts and circumstances, where the parties
to the proceedings originally in Suit No. 240 of 1990 filed at the
instance of the appellant have consented to obtain a consent
decree of specific performance dated 2nd August, 1991
pursuant to which deed of conveyance was executed on 3rd
August, 1991 and full stamp duty of Rs. 1,85,000/- was paid by
the appellant and no objection was raised by the respondent at
any stage in reference to the agreement to sell dated 15th
January, 1990 in the suit for specific performance and the
decree dated 2nd August, 1991 although it has been set aside
by this Court at the instance of the third party to the
proceedings, namely, M/s. the New Red Bank Tea Company
Private Ltd. and once the finding has been affirmed that the
appellant is entitled for refund of Rs. 1,85,000/- towards stamp
duty which was paid on the deed of conveyance, the appellant
who has always shown his bonafides in transfer of full
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consideration after which deed of conveyance was executed
and stamp duty of Rs. 1,85,000/- was paid which he is
indisputedly entitled for refund, it is not open for the
respondent(s) to question as they always remained consented
to the decree passed by the Court dated 2nd August, 1991
which although came to be set aside at the instance of the third
party, namely, M/s. the New Red Bank Tea Company Private
Ltd.
17. In the facts and circumstances, it will not give any cause
of action to the respondent to raise an objection for impounding
of the document invoking Section 35 of the Indian Stamps Act,
1899 more so when the appellant had paid the stamp duty of
Rs. 1,85,000/- and is entitled for refund which indisputedly was
never claimed. In our considered view, in the facts and
circumstances of the case, it was not open for the Division
Bench under the impugned judgment to set aside the order of
the Single Judge which was one of the possible view in the
peculiar facts and circumstances of the case.
18. Consequently, the appeals deserve to succeed and are
accordingly allowed. The judgment of the Division Bench of the
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High Court dated 13th April, 2017 is hereby quashed and set
aside. No costs.
19. Pending application(s), if any, stand disposed of.
………………………………………..J.
(MOHAN M. SHANANAGOUDAR)
………………………………………..J.
(AJAY RASTOGI)
NEW DELHI
OCTOBER 22, 2019
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